Dealing with employees and contractors comes with risk and compliance with the many commercial and employment laws – including health and safety – can be burdensome. While accidents in the workplace are often not completely avoidable, employers need to show they have done enough to avoid them.

The Occupational Health & Safety Act, 1993, and its Regulations (OHSA), requires an employer to create and maintain, as far as is reasonably practicable, a workplace that is safe and without risk to the health of employees. Business risks are determined by a health and safety risk assessment. Where there is risk of harm, employees must be informed of these dangers and ways to avoid them. The onus falls on the employer to show that the workplace is safe or that reasonable steps are in place to mitigate risk of harm.

OHSA-compliance is the responsibility of the person tasked with the overall management and control of the business (such as, the CEO). The consequences of non-compliance far outweigh the time and effort to comply. Common consequences are the total or part closure of the business, and a fine. In the event of a serious injury or fatality, imprisonment with a criminal record is possible.

To take the safety of workers seriously, employers need to perform a risk assessment and inform employees of the risks in the workplace. It is imperative that employees are trained on safe work practices and where appropriate, should be disciplined in the event of a breach of safety procedures. This will assist in promoting a culture of safety and compliance with work procedures.

Complacency and human error are often the primary culprits for workplace injuries. Employers should consider the visibility and placement of hazard warning signs, the practicality of voluminous procedure documents, the common language of the workforce and whether contractors or temporary labour are briefed on workplace safety. Considering these factors may avoid an injury.

Compliance with OHSA is monitored by the Department of Labour (DoL). In the event of an injury, employers must be in a position to respond to the DoL to show they complied with safety standards in order to avoid a possible shut-down. It is recommended that safety procedures be implemented, acknowledged by employees and compliance monitored. Injuries on duty disrupt the workplace in addition to the potential consequences.

It is in an employers’ interest to ensure compliance with OHSA and to regularly review this compliance to ensure that reasonable measures are implemented to identify, avoid or mitigate the risk of harm occurring in operations. Failing which, there may be an expensive lesson to learn from DoL.

This article was written by Raoul Kissun, Senior Associate, Norton Rose Fulbright South Africa Inc

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